Overdue Process

The cavernous room in the U.S. District Court in Washington, D.C., was nearly empty, except for a few journalists holding yellow legal pads. A small parade of government lawyers marched in and rested their briefcases on their desks before approaching the trio of lawyers representing Mohammed Jawad, an Afghan national who was detained in 2002 after being accused of throwing a grenade at an American convoy, injuring several American soldiers. He was between 12 and 17 years old at the time and has been in U.S. custody for seven years. The hearing, held in June, was not related to Jawad's guilt or innocence. Rather, it was his habeas corpus proceeding -- the legal challenge to the government's ability to hold him in the first place.

It is widely believed that Jawad's confession, offered to Afghan authorities shortly after his capture, was coerced through torture. Jawad is illiterate, and the confession was written in a dialect he didn't speak, accompanied by a separate page bearing only his thumbprint. His military defense attorney, Maj. Eric Montalvo, says that as soon as Jawad was asked about the incident in a language he could understand, he denied everything. Then, Montalvo says, Jawad was handed over to American interrogators who tortured him ("They did things that were classified"). After Jawad attempted suicide in his Guantánamo cell in 2003, he was subjected to the government's "frequent flyer" program, in which the detainee is moved from cell to cell every few hours for days or weeks on end, in order to deny him sleep.

Because Jawad was technically captured "on the battlefield," he appeared before a military commission in 2007. At the hearing, the presiding judge threw out the coerced confessions and the original prosecutor, Lt. Col. Darrel Vandeveld, resigned in disgust, penning a letter in which he denounced the commissions as a travesty. Jawad has been denied a criminal trial, where his culpability might be determined according to the high standards of federal courts. "Under the Bush administration, there was this attempt to blur the criminal-justice system and the military-justice system and create this hybrid system that lacked due-process safeguards," says Stacy Sullivan, a counterterrorism adviser for Human Rights Watch. "We hoped that during the Obama administration we'd be able to put those pieces back where they belong. That doesn't seem to be happening."

At the habeas hearing in June, the Department of Justice was scheduled to submit a series of documents regarding Jawad's detention that had been collected by an Obama administration task force investigating Guantánamo and U.S. detention policy. But Justice Department attorney James Gilligan informed Jawad's lawyers that the department was unable to provide the documents on the grounds that the information was "protected." When Maj. David Frakt, one of Jawad's lawyers, asked when the documents would be ready, Gilligan just chuckled. An uncomfortable silence fell on the group as Frakt stared at Gilligan. "I don't know," Gilligan finally said.

Watching the proceedings, Montalvo, shrugged and said, "The government has no case. They know it. They're stalling."

The story is an old one for Jawad's lawyers -- they believe the government knows it cannot justify holding him, but it doesn't want to let him go. More galling to Jawad's defense counsel is the fact that the government sought to include Jawad's confessions to Afghan authorities, obtained through torture, as evidence against his release. In July, his lawyers filed a motion to suppress the confessions, which made up about 90 percent of the evidence against him. This time, the government chose not to challenge the motion -- but failed to commit to his release. Judge Ellen Segal Huvelle eviscerated the government for having little cause to continue holding him. "This guy has been there seven years -- seven years," Huvelle said. "Without his statements, I don't understand your case. I really don't."

At the core of the dispute over the detention of suspects like Jawad is whether or not there are, as President Barack Obama claims, "detainees at Guantánamo who cannot be prosecuted yet who pose a clear danger to the American people." This is the so-called "fifth category" of detainees -- exactly how many there are, the government has yet to determine. (Assistant Attorney General David Kris told Congress in July that half of the Guantánamo detainees' cases had been reviewed, and none had yet been put into the "fifth category.") "There will be some, who we have picked up and who are in Guantánamo ? who for a variety of reasons can't be prosecuted," says former CIA counsel Jeff Smith. "We have convincing intelligence information, but it is not enough to prosecute them."

Frakt isn't buying the administration's assertion about the necessity of preventive detention -- the practice of imprisoning suspected terrorists even in cases where the government cannot prove they have committed crimes. "When you look at the minimal amount of evidence required to convict someone of something like material support for terrorism, and they don't even have that much, how is it that we know that these people are so dangerous?" he asks. Frakt's concerns likely have a great deal to do with the way the government has treated his client -- and not only because it tried to get his coerced confession admitted as evidence.

Montalvo says government officials "believe they have a guilty guy who tried to hurt Americans." But after seven years of failing to justify his detention, the government agreed on July 29 to release Jawad to return home to Afghanistan -- though it implied he might still be subject to criminal prosecution.

In his inauguration speech, Obama declared, "As for our common defense, we reject as false the choice between our safety and our ideals." And in his first weeks in office, he took some important first steps to that end. He outlawed the use of "enhanced interrogation techniques" (the Bush administration's euphemism for torture), suspended military commissions, and ordered Guantánamo closed within a year. But when it came to detainees like Jawad, Obama found that Bush had set a precedent that was difficult to break. "It ultimately comes down to a question of risk aversion," says Matthew Waxman, who was the deputy secretary of defense for detainee affairs from 2004 to 2005. "How much risk is the government willing to take in releasing someone who is believed to pose a continuing danger?"

***

In a different era, Mohammed Jawad might have had his day in federal court -- he would have been able to face his accusers, to hear the evidence against him, and to be tried by a jury rather than by a panel of military judges. Prior to September 11, 2001, the federal government's approach to terrorist suspects tasked the CIA with intelligence-gathering, while the FBI's responsibility was to take that intelligence and build prosecutable cases. But the Bush administration, fearing that the FBI's approach was too expensive and time consuming, and therefore unsafe, began relying on the CIA's determinations alone. "For wide swaths of counterterrorism policy that were now being conducted under a law-of-war framework, the FBI's role relative to the Defense Department and the CIA was probably diminished," Waxman says. The administration began apprehending people on the basis of intelligence, and the information implicating the captured, no matter how reliable, would often be inadmissible in court because of its origin.

For Bush administration officials, that didn't really matter; they didn't intend to bring many terrorists to trial. Their new framework treated most terrorist suspects not as criminals, as they had originally been classified, but as "enemy combatants" -- akin to soldiers in a conventional war, in which detainees are released after a peace accord is signed. But because the war against terrorism has no definable end point, the Bush administration asserted the authority to indefinitely detain terrorist suspects -- including those whose confessions had been wrung out of them through torture. The detainees would be tried, the Bush administration announced in 2002, in military tribunals that required less evidence than civilian courts do to convict defendants, therefore increasing the possibility of conviction.

Legal experts declared the administration's actions unconstitutional, and the left set out to prove it in court. In a series of high-profile cases, individual lawyers and groups like the American Civil Liberties Union scored one victory after another in establishing due-process rights for detainees. In 2004, Georgetown law professor Neal Katyal filed a brief on behalf of detainees in Rasul v. Bush, in which the Supreme Court found that U.S. courts had jurisdiction over deciding whether or not detainees were wrongfully imprisoned. In 2005, Congress, prompted by media reports detailing the Bush administration's torture policies, passed the Detainee Treatment Act, which further clarified the government's obligation to abide by prohibitions against cruel, inhuman, and degrading treatment. The following year, Katyal was the lead counsel in Hamdan v. Rumsfeld, which established that the Bush military tribunals were unconstitutional. The lawsuit also forced the Bush administration to go to Congress for the authority to detain "enemy combatants" and try them in military courts. (That authority was granted by the 2006 Military Commissions Act.) In the series of rulings, the Supreme Court established that the government's obligation to the Constitution did not end at American shores.

Yet these legal victories created few changes for the detainees the government was intent on keeping. Real reform -- a whole new approach to fighting terrorism -- would have to wait for a new administration, one as concerned with preserving the rule of law as protecting the country. For the civil-liberties left, a young senator from Illinois -- a former constitutional-law professor -- seemed like he was just the man for the job. On the campaign trail, candidate Barack Obama was fearless in the face of conservative demagoguery on national security -- he even said that if he managed to capture Osama bin Laden, he would subject him to a jury trial to avoid making him a martyr. He pledged to institute a system for trying detainees based on the Uniform Code of Military Justice, which has rules similar to those in federal courts. Some civil-liberties advocates dared to hope that if Obama was elected their fight would be over.

As the Bush years drew to a close, however, a rift began to open on the intellectual left. There was still near-unanimous agreement that torture was deplorable and that detainees had a right to due process, but the coalition was divided on the issue of preventive detention. While some groups, like the ACLU, continue to advocate for a "charge or release" policy in all circumstances, independent legal experts are engaged in a vigorous debate about how -- and when -- it is constitutionally permissible to hold suspects against whom we have scant evidence.

An early sign of the split came in 2007 when Katyal, one of the legal heroes in the fight for detainee rights, co-authored an op-ed in The New York Times with former Bush lawyer Jack Goldsmith, who was responsible for retracting the legal rationale for the "enhanced interrogations." Katyal and Goldsmith argued that Congress should "establish a comprehensive system of preventive detention that is overseen by a national security court composed of federal judges with life tenure." The national-security courts would resemble the Foreign Intelligence Surveillance Courts that grant the government wiretap authority -- they would have access to classified information and be able to grant or reject the government's authority to detain an individual, based on the evidence presented. This, according to Katyal and Goldsmith, would help the executive branch cope with those detainees who are being held on the basis of solid intelligence, while preventing the government from holding others based on tenuous evidence.

Civil-liberties groups criticized Katyal's proposal, saying it resembled the policies they had been fighting against for the past six years. They were even more surprised when, in December 2008, another longtime champion of civil liberties, Katyal's Georgetown University colleague David Cole, published a series of articles calling for a statute permitting preventive detention of members of groups that have declared war against the United States. "Terrorism ? is a crime. Just like murder is a crime, just like rape is a crime. We don't have preventive detention for those crimes. So terrorism ought to have nothing to do with whether you have a preventive detention statute or not," Cole says. "But war should have something to do with it." The government, Cole argues, should be able to indefinitely detain members of al-Qaeda or a similar organization, whether they're captured in a combat zone or not.

"Is this the same David Cole who appeared on panels with me over the last few years and who didn't seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?" asked American University law professor Kenneth Anderson on the legal blog Opinio Juris in December 2008. If preventive detention "is sensible and legal now," he continued, "why wasn't it sensible and legal during the Bush years?"

Others warned that limiting preventive detention to al-Qaeda members would prove impossible. "Al-Qaeda is not like the German army, not like the Japanese army. There are no membership requirements," says Jonathan Hafetz, a lawyer with the ACLU who represented Jawad. "It is a diffuse organization and can spin into or become other organizations."

Some of the debate boils down to where a suspect is captured. Most civil-liberties advocates, including groups like Human Rights Watch, concede that the military has the authority to detain those it captures in a zone of combat, treating them as though they were enemy soldiers. Indeed, that authority is already granted by Congress under the 2001 law that authorized the use of military force in Afghanistan. But they believe that individuals captured away from combat zones should be tried in civilian courts. And suspects like Jawad, who were captured in a combat zone and tortured into implicating themselves, should be released.

Jawad's case is not just a test of how the Obama administration will handle the suspects detained during the Bush era. It's an indication of how the administration intends to detain and try terrorist suspects in the future. The Obama administration has been struggling with a fundamental question that the fractured intellectual left is finding difficult to answer: Is it possible to fight terrorism without abandoning the law?

***

At the American Constitution Society's annual convention in June, Noel Francisco, a former Bush lawyer in the Office of Legal Counsel, appeared on a panel alongside several longtime critics of Bush policy who had recently been hired by the Obama administration. Francisco noted with a hint of smugness that the issues surrounding terrorist suspects were not as simple as the left once implied. "What about the detainees that you really don't have any admissible evidence against, or the ones that frankly, you don't think committed crimes but if you release, you're pretty sure will take up arms against you again? There's not a good answer to that question," he said. "Guantánamo Bay, for better or for worse, was the best thing that we could come up with. And what you're all struggling with now is, what is the best thing you could come up with? And it's not that easy."

In a May speech on national security, Obama declared, "I am not going to release individuals who endanger the American people. Al-Qaeda terrorists and their affiliates are at war with the United States, and those that we capture -- like other prisoners of war -- must be prevented from attacking us again." He then sparked outrage from some civil-liberties advocates when he went on to say that he would revive the Bush administration's military commissions with some modifications -- such as the exclusion of evidence obtained through torture -- to ensure due process.

What makes Obama's embrace of military commissions so strange is that the government hasn't had any trouble trying terrorists in federal courts -- indeed, administration officials have said they will attempt to try most terrorist suspects that way. A Human Rights First study showed that since the 1990s, 91 percent of terrorist suspects tried in civilian courts have been convicted, and the remaining 9 percent were later imprisoned on lesser charges. This is a conviction rate more suited to Vladimir Putin's Russia than to the United States -- something civil-liberties groups would likely be protesting if they weren't so busy trying to get terrorist suspects their day in court in the first place.

With that kind of record, who needs preventive detention? Obama does, his defenders argue, explaining that the president has inherited an untenable situation. Even if he changes the policy so that, in the future, the United States only detains those against whom we have solid evidence, we are still left with the detainees whose cases were bungled by the Bush administration. Those who were tortured into implicating themselves probably can't be tried at all. But at least thus far, the administration has made an effort to treat suspects as if it intends to bring them to trial. After a federal judge issued a ruling in April granting habeas rights to prisoners at Bagram Air Force Base in Afghanistan who were captured away from the battlefield, the administration sent in the FBI to read the prisoners their Miranda rights. "These are cases where they are looking at potential criminal charges," said Gen. David Petraeus, commander of U.S. Central Command. "We're comfortable with this."

Cole says the notion that the Obama administration is simply continuing Bush's counterterrorism policies isn't true. "The important difference is that Obama is saying we will be guided and governed by the rule of law," Cole says. "Bush was saying quite the opposite." The distinction is a legalistic but important one: The Bush administration believed that there were simply no limits to the president's power in wartime. By insisting that its power to detain suspects is granted by Congress, the Obama administration has conceded that such authority is subject to oversight from other branches of government -- and can ultimately be taken away. And unlike the Bush administration's dismissal of civil libertarians and human-rights advocates, the Obama administration has been actively soliciting their views as it figures out how to proceed with the detainees in custody.

The administration has said it is working to come up with a constitutional preventive-detention policy. In the meantime, federal courts have been hashing out the finer points of preventive detention, implicitly accepting that some form of detention is constitutional. Ben Wittes, a scholar at the Brookings Institution, argues that now is the time for civil-liberties advocates to step up and define what a preventive-detention policy should look like. "Human-rights groups are very quick to denounce proposals for what I think of as framework legislation to govern detentions that we are already doing," Wittes says.

As the clock ticks closer to the deadline for closing Guantánamo and deciding the fate of the detainees there, many left-leaning legal and national-security experts have weighed in. Most believe preventive detention should remain confined to the battlefield. "If this is where the administration is headed -- as opposed to seeking some broad new preventive detention authority," Deborah Pearlstein, a national-security expert who teaches at Princeton University, wrote at Opinio Juris, "I'm prepared to wait a few extra months to get there."

In late July, the day after the government agreed to release Jawad, Judge Huvelle's once-empty courtroom was packed with buzzing reporters. Government lawyers refused to say for certain whether Jawad might actually make it home to Afghanistan or whether they would criminally indict him before his transfer. Huvelle seemed to discourage the government from pushing for prosecution, here or in Afghanistan. "Enough has been imposed on this young man to date," she said. "I hope the government will succeed in getting him sent back home."

The lawyers closest to the detainees are still pushing Obama to reject preventive detention entirely. Now that Jawad may have found some small measure of justice, they have a renewed sense of hope in the administration. "The pendulum is swinging back, the rule of law is being restored," Frakt says. "They're trying to make change in a very thoughtful, deliberate way." Pointing out that detainees have won 29 out of the last 34 habeas cases, Frakt is cautiously optimistic that the Obama administration will do the right thing on preventive detention. "If these are the 'worst of the worst' then we were all misled as a country. And I think that's what they're finding."

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